Chief Justice of the United States John G. Roberts Jr. is embracing a big technological change for the Supreme Court, but it doesn’t involve the presence of cameras in the nation’s highest court.
On New Year’s Eve, Chief Justice Roberts said in his annual report on the federal court system that the Supreme Court hoped to have its own website ready in 2016 that would contain filings and other electronic documents currently housed on other websites.
This may not seem like a big deal to the general public and Court watchers are already viewing many of these documents on sites like SCOTUSblog and a paid service called PACER, but it is a significant step into the 21st Century for the Supreme Court.
Roberts used the example of the installation of pneumatic tubes in the current Supreme Court building to show how carefully, and slowly, the Court embraces change. The compressed air tubes were all the rage in 1893, Roberts said, as a way to send documents around buildings. The Court waited until 1935 to adopt the technology and then stopped using it in 1971.
“Courts are simply different in important respects when it comes to adopting technology, including information technology,” Roberts said. “While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations.”
Citing the high bar set for Article III courts in the Constitution, Roberts added that, “The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.”
Perhaps indirectly, Roberts was addressing a thorny issue that has motivated some Court critics in recent years: the absence of cameras to document Supreme Court arguments. Cameras that shoot still images and video are barred from the Supreme Court and most federal courts. (Audio of Supreme Court arguments is released on a delated basis.)
Two senators quickly criticized Roberts for not mentioning cameras in his report.
“I agree with the chief justice that the judiciary must continue to do more to employ technology so that Americans have access to their courts.” said Senator Patrick Leahy (D., Vt.). “Not mentioned in his report, however, is the failure of the Supreme Court to allow even old technology, like photographs of the Supreme Court in session or live streaming of its oral arguments online.”
The Senate Judiciary Committee’s top Republican, Iowa Senator Chuck Grassley, was equally critical. “Chief Justice Roberts rightly promotes how the courts have embraced new technology,” he said. “Unfortunately, though, the courts have yet to embrace the one technology that the founders would likely have advocated for-cameras in the courtroom. The Founders intended for trials to be held in front of all people who wished to attend.”
The arguments against cameras in the court room are straightforward: the people on camera (Justices and attorneys) might “showboat” for the cameras; the media could selectively use video clips to misrepresent information; and basic fair trial rights are at risk because the presence of video would make proceedings political, as well as judicial.
Sonja R. West from the University of Georgia School of Law looked at the history of cameras and the Supreme Court in a 2012 law review article, and she came to the conclusion that the vividness and accessibility of video make it much different from the audio recording released by the Court. But she also acknowledged that allowing cameras in the courtroom would be a tough sell, with so many current, retired and former Justices on record against it, or undecided about the issue.
“The Justices often respond to arguments for video cameras in oral arguments by noting how very public the work of the Court already is-and they're right. In many ways, the judiciary is the most open branch of government,” she said.
And what if the Justices had a change of heart? A look at how audio recordings of the Court became public shows it could take as long as the pneumatic tube change for court video to appear on television and the Internet.
The Supreme Court audio recordings date back to October 1955. But the recordings were only available to the Justices, clerks and researchers, with usage restrictions, until 1993. After a dispute with a political scientist who published select audio records, the Court allowed audio to be available to the general public without restrictions.
It wasn’t until 2010 that audio of Supreme Court arguments was made available during the current term, but now audio is available on a weekly delayed basis.
Several Justices have said publicly they want to see the results of pilot programs currently in place in several lower federal courts before making any decisions.
Scott Bomboy is the editor in chief of the National Constitution Center.
